Elena Kagan was asked a few questions about the religion clauses yesterday, and the Baptist Joint Committee has a transcript. On my non-lawyer’s reading, her answers are lawyerly, professorial, and determinedly unrevealing about where she herself might come down as a Supreme Court justice. She indicated that in resolving the tension between the Free Exercise and Establishment clauses, the Court did well to allow “some play in the joints”–an expression that goes back 40 years in the Court’s jurisprudence. But the “play” was very different in 1970 than it is today, taking a more restrictive approach to religious establishments and giving more latitude to free exercise claims.

In explaining the issue, Kagan did offer an example worth thinking about:

So, suppose that a state government decides to give what is called a
“voluntary accommodation” to some religious person – essentially a
voluntary exemption of that person from an otherwise generally
applicable law – and does that because the law would impose some
substantial burdens on that person’s religious practice, and the state
thinks: “you know what, in those circumstances we think that the person
should be exempted from the law so that the person can follow the
dictates of her conscience.” But then somebody else comes in and says,
“well, what do you mean? You’re giving that exemption but you’re not
giving me an exemption and why are you making that sort of special
accommodation to this person? That special accommodation must count as
an establishment of religion.” And so there you get a claim where
there’s an accommodation to the free exercise of religion, but then
there’s a claim that that violates the Establishment Clause part of the
First Amendment. And that’s the kind of way in which there might be
tension.

The problem here really is that under the 1990 Smith decision, the state government in question would be subject to Establishment Clause challenges that it wouldn’t be if the Court still allowed Free Exercise challenges to neutral laws of general applicability. In effect, by deciding that there is no constitutional right to an exemption from a law that just happens to burden your religious practice, the Court has given the joints less play–turning every “voluntary accommodation” into a potential Establishment Clause case. It will be interesting to see if Kagan, in her next job, tries to do something about that.